Senate debates

Tuesday, 31 August 2021


Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021; Second Reading

6:04 pm

Photo of Louise PrattLouise Pratt (WA, Australian Labor Party, Shadow Assistant Minister for Manufacturing) Share this | Hansard source

I am angry about the inadequacy of the legislation before us today in parliament, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021. More than a year and a half has passed since the release of the Human Rights Commission's landmark Respect@Work report, written by Australia's Sex Discrimination Commissioner, Kate Jenkins. What the report found was that our workplaces and the laws that govern them are failing to provide workplaces that are free from sexual harassment and discrimination. There hundreds of stories from women and men about the sexual harassment that they have been subjected to in their workplaces.

It is utterly shameful that this government has stood idly by while people, especially women, continue to be victimised in their workplaces.

This government waited more than a year and a half before responding to the Respect@Work report. An advance copy of the report was given to the government as early as January last year, before it was released publicly in March last year, but the then Attorney-General, Mr Christian Porter, left it to gather dust on his desk. He did nothing—nothing—about this scourge of sexual harassment that was well documented in the commissioner's report. He did not once meet with the commissioner about the report or its recommendations. He ignored the report and disrespected the process. How could he have been handed a landmark report about how we, as a nation, could make our workplaces safer, especially for women, and then baldly ignore it, especially in the face of the trauma that had been revealed inside that report?

In March this year, when the Prime Minister asked Attorney-General Porter to step down amidst allegations of workplace sexual assault and harassment in the parliament itself and historic rape allegations against the minister, this government had still not responded to this report. It was only following Senator Cash's appointment as Attorney-General that the government then rushed to respond to it. So, in many ways, I am not surprised at the entirely limited legislation that we now have before us to address this scourge.

The response itself and the legislation before us have not been not deeply considered. In fact, we've seen senators opposite say: 'We haven't got to the issue of a positive duty yet. We're still considering that. We haven't rejected it.' You have had an extraordinary length of time in which to consider this. I have to say that perhaps it only started being considered because of the scandal around the government, not because of the sexual harassment which is being experienced in workplaces right around Australia and which has been experienced since this report was tabled. It has happened in my own home state of WA. In Western Australia's mining industries, there have been allegations of rape and sexual harassment—events that have taken place since this report was tabled and that could have and should have been prevented. So I don't think it's any wonder that this government is still making excuses about assessing a duty of care.

Plainly, this bill is worthwhile, but it is a face-saving device for a government that is weighed down by scandal and allegations against its own members. It has not done the due diligence to put a comprehensive package together before this place. Victims of sexual harassment and discrimination deserve so much better. The case for change and the path forward was very clearly put forward by Commissioner Jenkins, and this parliament has a responsibility to act on and implement her recommendations.

The government sat on this report for over a year without responding and without the responsible minister meeting even once with the commissioner. Now we have a bill before us that implements only six of the 17 legislative recommendations that Commissioner Jenkins made, and, of those six, some are only a partial implementation of those recommendations.

Implementing all the Respect@Work report recommendations is entirely consistent with my commitment, the Labor leader's commitment and the Labor Party's commitment to achieving substantive equality between men and women in our nation. By doing this, we're making the legal and structural changes that enable power inequalities to be addressed in the community and in our workplaces.

But the bill in this current form does not come even close to this objective. It doesn't implement recommendation 17, to insert a positive duty into the Sex Discrimination Act. It doesn't implement recommendation 28, to amend the Fair Work Act to expressly prohibit sexual harassment. It does not amend the Fair Work Act to provide all workers with access to 10 days paid family and domestic violence leave. It does not implement recommendation 23, to amend the Human Rights Commission Act to allow representative groups to bring representative claims to court. It does not implement recommendation 25, to amend the Human Rights Commission Act to insert a costs protection provision consistent with section 570 of the Fair Work Act. It does not provide broad and 'stop sexual harassment' orders to cover sex based harassment extending to any circumstances connected with work. And it does not amend the Sex Discrimination Act to achieve substantive equality between men and women as an objective for our nation. It does not implement recommendation 16b and 16c, to prevent the creation of hostile work environments. The bill says it has to be 'seriously demeaning'; you have to be subjected to seriously demeaning behaviour rather than just demeaning behaviour.

If you look at what is left out of this bill, then you can see that this bill provides an advancement but no real protection for women from sexual harassment in their workplace. Why? Because, in order to raise a complaint and take it to court, you could be subjected to costs. When you get to court, you could end up debating whether the harassment that you were subjected to was seriously demeaning or just demeaning. Will it be credible enough to stick to a charge? Can you imagine debating the extent to which you've been demeaned by someone's behaviour? It is little surprise to me that so many stakeholders in the course of the Senate inquiry agreed with Commissioner Jenkins, who herself said to the inquiry this bill is not good enough and does not live up to what this nation needs to protect people from sexual harassment in their workplaces. The government has failed to address fundamental recommendations for reform. The bill still leaves intact reactive and adversarial regulatory systems that are, by this legislation, largely unchanged, and because of this the law will continue to fail to protect people in their workplaces from sexual harassment and behaviour from colleagues or bosses—or even from customers—that demeans them.

The Human Rights Commission told the Senate inquiry that the introduction of a positive duty would be 'a powerful tool to promote broad systemic and cultural change that sits outside the current adversarial framework of discrimination law'. It's little wonder that so many submitters to the committee, and in the community, have hinged around every aspect of what Commissioner Jenkins recommended that is entirely absent from this bill. Those opposite have said we already have a duty of care in the Work Health and Safety Act. Well, Commissioner Jenkins said very explicitly in her submission on this legislation that the Work Health and Safety Act is not an adequate, substantive, proactive duty of care because it is not specific enough, and the Work Health and Safety Act is not perceived in those terms; it's not perceived in the terms of preventing discrimination and harassment.

It's tied up in the vagaries of psychosocial hazards, which this government has admitted still need to be looked at and further reformed. And yet Australian women who are subject to sexual harassment in their workplace will again be abandoned by this government, which is failing to make these changes.

Commissioner Jenkins said:

This would not impose an undue regulatory burden and would have a greater chance of reducing the cost of sexual harassment to business.

In the report she characterised the billions of dollars that this behaviour costs workplaces, the productivity effects and, undoubtedly, the incredible toll that it takes on those subject to this behaviour. Even employer groups like the Minerals Council agreed. When the Minerals Council CEO, Tania Constable, appeared before the Senate inquiry, she said:

… given the significant issue—

and the failure of existing laws to adequately address the problems—

we support there being a positive duty in the Sex Discrimination Act.

The Law Council supports it, Diversity Council Australia supports it, legal aid supports it and the Australian Discrimination Law Experts Group supports it. It seems entirely bizarre to me that this government has refused to include the introduction of the positive duty into this legislation. The right of workers to be free from sexual harassment is a human right, a workplace right and a safety right. I implore those opposite to amend the bill to support a positive duty in the Sex Discrimination Act.

I know others will speak to the importance of implementing other recommendations ignored by this government, but I want to speak to one other in this contribution: recommendation 23, which would address what the Australian Human Rights Commission identified as the 'chilling effect' of current regulatory regimes and the impact that has on victims-survivors taking action against perpetrators. The government rejected this recommendation without detailed reasoning, simply noting that there's an existing mechanism to enable representative proceedings in the Federal Court. I have to say: is the government living in the real world? The power dynamics that exist in Australian workplaces and that make workers extremely hesitant to even come forward and report sexual harassment, let alone go down the route of taking their employer to court, have been manifestly ignored by this government in the way that it has brought this bill forward and in all its public comments. This government is entirely out of touch with the experiences of victims. It has taken an enormous toll on them. They've left their jobs. They've lost income. In some cases, as I learned when I spoke to women during the course of the Senate inquiry, it has ruined their mental health and their financial future.

Today I call on the government to fully implement the Respect@Work report recommendations by amending the bill currently before the parliament. I condemn the government for its delay. Every day without action allows the scourge of sexual harassment in Australia's workplaces to continue. It is shameful that, in the legislation that is before us today, this government has failed to take real action to stop sexual harassment in Australia's workplaces.


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